Citation Nr: 1417428
Decision Date: 04/18/14 Archive Date: 05/02/14
DOCKET NO. 10-10 718 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania
THE ISSUES
1. Entitlement to service connection for left ear hearing loss.
2. Entitlement to an initial compensable rating for right ear hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Shamil Patel, Counsel
INTRODUCTION
The Veteran had active service from July 1966 to July 1968.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which granted service connection for right ear hearing loss and assigned a 0 percent disability rating effective February 28, 2007, and also denied service connection for left ear hearing loss.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
Unfortunately, additional development is necessary in order to fully and fairly adjudicate the Veteran's claims.
The Veteran was afforded a VA examination in December 2007 for his hearing loss. However, the examiner did not review the claims file, and did not provide an opinion regarding the etiology of the Veteran's left ear hearing loss. Therefore, the Veteran's claim for service connection must be remanded in order to obtain an adequate opinion.
With respect to the Veteran's claim for an increased initial rating for right ear hearing loss, the Board notes that a rating under Diagnostic Code 6100 for hearing loss is dependent upon whether the Veteran is service-connected for one or both ears. See 38 C.F.R. § 4.85(f). Therefore, the assignment of a disability rating for right ear hearing loss should not be addressed until a determination can be made as to whether service connection for left ear hearing loss is warranted. Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009).
Accordingly, the case is REMANDED for the following action:
1. Schedule the Veteran for a VA audiological examination with an appropriate examiner. The claims file, including a copy of this remand, must be made available to the examiner as part of the examination, and the examiner must indicate in his/her report whether the claims file was reviewed.
All indicated tests and studies should be completed, including the Maryland CNC test and a pure tone audiometry test.
The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left ear hearing loss had its clinical onset during active service or is related to his in-service noise exposure including an explosion during his training period. In providing this opinion, the examiner should consider the audiogram conducted at the time of the Veteran's separation from service in March 1968 showing a 25 decibel loss at 4000 hertz.
A clear rationale for all opinions should be provided. If an opinion cannot be provided without resorting to speculation, the examiner must state why this is the case.
2. Review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If the examination report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.
3. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative with a supplemental statement of the case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).